Vecchiarino v. Ridgway

7ermont Superior Court
Filed. 02/10/26
Windhain nit

VERMONT SUPERIOR COURT CIVIL DIVISION
Windham Unit Case No. 23-CV-01112
Court Street
Newfane VT 05345
802-365-7979
www.vermontjudiciary.org

Giovanni Vecchiarino v. Margit Ridgway, et al

DECISION ON DEFENDANT SHMUEL PURETZ'S MOTION TO
EXCLUDE TESTIMONY OF BRAD LEFEBVRE (MOTION # 21)
In this personal injury action, Plaintiff Giovanni Vecchiarino alleges that he was
injured when Defendant Seton King hit a golf ball in an indoor golf simulator room, and
the golf ball ricocheted and struck Plaintiff. According to the complaint, Defendant
Shmuel Puretz is the principal of Defendant Snow Mansions LLC, a rental property
business that rented out the property at 3 Margit Ridgway, in the Town of West Dover,
Vermont, to Defendant Alpha Tau Omega Fraternity, Inc., where the golf simulator
room was located. Puretz now moves to exclude the testimony of Brad Lefebvre,
Plaintiffs identified expert on golf simulators.

Puretz objects to potential testimony from Lefebvre that "that 1) the fabric used
to construct the screen which Seton King hit into was improper, 2) the tension on the
fabric screen was improper, 3) the fabric screen was placed too close to the back wall of
the room such that golf balls could make contact through the fabric screen to the back
wall and bounce back, and 4) that when the ball came in contact with the screen it must
have pushed the material back sufficiently to make contact with metal bar to which the
fabric screen was attached, and then bounced back to hit Plaintiff in the eye."
Defendant Shmuel Puretz's Motion to Exclude Testimony of Brad Lefebrve [sic]
("Motion to Exclude") at 5.

Puretz argues that Lefebvre's opinions do not support the requirements of V.R.E.
702 to support Plaintiff's claim of proximate cause. According to Puretz, Lefebvre's
opinions require "scientific education and knowledge in the manufacture and
construction of such fabrics and screens, golf ball physics, scientific testing to support
the hypotheses, and peer reviewed and published support for the testing used to support
the opinions." Motion to Exclude at 5. Plaintiff counters that Lefebvre is not a scientific
expert, but rather, his testimony will be based upon his skill, experience, training, or
knowledge. For the reasons stated below, the Court denies the motion and generally
admits the proffered testimony, while reserving its decision as to specific statements
that Lefebvre may make while testifying at trial.

"[T]rial judges in Vermont 'must now act as gatekeepers who screen expert
testimony ensuring that it is reliable and helpful to the issue at hand before the jury
hears it.'" 985 Assocs., Ltd. v. Daewoo Elecs. Am., Inc., 2008 VT 14, 1 6, 183 Vt. 208

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(quoting USGen, 2004 VT 90, ¶ 19, 177 Vt. 193). The relevant rule provides that “if
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise ….” V.R.E. 702.

The Vermont Supreme Court has recently noted that

Such expert testimony is permissible so long as “(1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” V.R.E 702. Rule 702 is
“essentially identical” to its federal counterpart, and we
therefore “apply the federal principles governing
admissibility of expert testimony.” 985 Assocs. v. Daewoo
Elecs. Am., Inc., 2008 VT 14, ¶ 6 (quotation omitted).

¶ 28. Rule 702 embodies “a trilogy of United State Supreme
Court cases, beginning with [Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)], that expound
the limits of admissibility for expert testimony and create
workable standards for use by trial judges” to assess an
expert's qualifications and the reliability of the methods used
to reach their opinions. State v. Pratt, 2015 VT 89, ¶ 16.
Daubert and its progeny provide “a flexible standard
intended to keep misleading ‘junk science’ propagated
primarily for litigation purposes out of the courtroom while
simultaneously opening the door to well-reasoned but novel
scientific or technical evidence.” 985 Assocs., 2008 VT 14, ¶
8.

¶ 29. The reliability of an expert's opinion depends on
whether it is “sufficiently rooted in scientific knowledge.”
Pratt, 2015 VT 89, ¶ 17. To make that reliability assessment,
a trial court may look to the four Daubert factors: (1)
whether the applicable theory or technique can be tested; (2)
whether it has been subjected to peer review and publication;
(3) its known or potential error rate; and (4) whether it has
been generally accepted by the scientific community. State v.
Streich, 163 Vt. 331, 343 (1995) (citing Daubert, 509 U.S. at
591-94). “These factors are not exhaustive, and a trial court
has broad discretion to determine, on a case-by-case basis,
whether some or any of the factors are relevant in evaluating
the reliability of expert evidence before it.” State v. Scott,
2013 VT 103, ¶ 10 (quotation omitted). This approach
reflects the effort “to promote more liberal admission of

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expert evidence” while keeping intact the trial court's
gatekeeping role of excluding junk science. Pratt, 2015 VT
89, ¶ 17 (quotation omitted).

State v. Rheaume, 2024 VT 53, ¶¶ 27-29. However, “court should not admit testimony
that is directed solely to lay matters which a jury is capable of understanding and
deciding without the expert's help.” United States v. Mulder, 273 F.3d 91, 101 (2d Cir.
2001). In other words, expert testimony must be limited to testimony “where the subject
matter of the testimony is beyond the ken of the average juror.” United States v.
Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991). See also Salem v. U.S. Lines Co., 370 U.S.
31, 35; (1962) United States v. Zhong, 26 F.4th 536, 555 (2d Cir. 2022); Sitts v. Dairy
Farmers of Am., Inc., 2020 WL 3467993, at *11 (D. Vt. June 24, 2020) (“Expert
testimony is not helpful if it simply addresses lay matters which a jury is capable of
understanding and deciding without the expert's help”); Doe v. Hartford Sch. Dist.,
2018 WL 1064572, at *5 (D. Vt. Feb. 26, 2018) (“statements directed to matters which a
jury is capable of understanding without an expert witness’s assistance” are not expert
opinion and must be excluded).

The Vermont Supreme Court has followed the United States Supreme Court’s
holding that “there are many different kinds of experts, and many different kinds of
expertise,” and “in some cases ‘the relevant reliability concerns may focus upon personal
knowledge or experience.’ ” State v. Pratt, 2015 VT 89, ¶ 18, 200 Vt. 64 (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). The Vermont Supreme Court
noted that

a trial court has broad discretion to determine, on a case-by-
case basis, whether some or any of the factors are relevant in
evaluating the reliability of expert evidence before it.” Scott,
2013 VT 103, ¶ 10, 88 A.3d 1173 (quotation omitted). We
further explained in State v. Kinney, 171 Vt. 239, 762 A.2d
833 (2000), that a mechanical application of the Daubert
factors to expert testimony is not necessary where the
scientific or technical evidence is not novel and its reliability
otherwise can be established. Id. at 249–50, 762 A.2d at 842.
Notably, we concluded that the State was not obligated to
present independent evidence, nor was the trial court
required to make independent findings, on each of the
Daubert factors because the reliability of the expert
testimony could be established through other means,
particularly through analogy to comparable technical
evidence we have allowed trial courts the discretion to
admit and through evaluation of the same type of evidence
by other courts. Id. at 250, 762 A.2d at 842.

State v. Pratt, 2015 VT 89, ¶ 19 (emphasis supplied).

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It is not unusual for trial courts to admit the testimony of “skilled” or “practical”
expert witnesses where the witnesses have extensive experience in a particular area and
apply that experience to make conclusions about what happened in a particular case.
Similarly to the matters at stake in this case, in Bloom v. ProMaxima Mfg. Co., the trial
court admitted the testimony of the owner of a company that made exercise equipment,
where the witness claimed experience with exercise equipment and had examined and
made conclusions about the defects of the exercise chair at issue. 669 F. Supp. 2d 321,
328 (W.D.N.Y. 2009).

In McCullock v. H.B. Fuller Co., the Court of Appeals for the Second Circuit held
that it was proper to admit testimony from a consulting engineer regarding whether a
person was in the breathing zone of hot glue fumes even though he had no formal
education regarding fume dispersal patterns and no experience performing or
interpreting air quality studies, did not know the chemical constituents of hot-melt glue
or of any fume emitted by the glue, and did not know the concentration level of the
fumes. 61 F.3d 1038, 1042–43 (2d Cir. 1995). The Second Circuit noted that the
witness’s background and practical experience qualified as “specialized knowledge”
gained through experience, and that the opponent’s “quibble” with the witness’s alleged
shortcomings could be properly explored on cross-examination and went to the weight
of the evidence rather than its admissibility. Id. at 1043.

In Wisdom v. TJX Companies, Inc., the trial court admitted testimony from a
safety expert regarding a store’s deviation from industry safety practices, where he had
no experience in clothing rack design or with the clothing rack at issue in the case, yet
had significant, practical experience in the “retailing world,” including exposure to
numerous types of store layouts and displays. 410 F. Supp. 2d 336, 342 (D. Vt. 2006).
Notably, the court excluded the witness’s testimony about the defectiveness of the
specific rack at issue, where the witness did not have sufficient data (“over 100 similar
racks”) from which to draw reliable conclusions, but left open the possibility that
discovery would acquire sufficient data to admit the testimony on that topic. Id. at 343.

Lefebvre’s testimony is not proffered as scientific testimony, but rather, as
specialized knowledge gained from Lefebvre’s experience working with indoor golf
simulators. His experience includes ownership in 2 indoor golf bar/restaurants founded
around 2006 as well as a custom golf simulation company founded in 2012. Exh. 1 at 3.
The company, which eventually became Indoor Golf Design (IGD) was according to
Lefebvre the first custom design/manufacture/supply/setup golf simulation company in
the industry. Id. Lefebvre has a separate research and development company, GolfTech
USA (“GTUSA”), which holds a patent on a DIY screen product. Id. GTUSA also
partners with other companies to test and do R&D work on their golf simulation and
launch monitor products. Id. Lefebvre has received training from various
manufacturers and companies on their screen systems and simulation equipment. Id.
He learned best practices and tested various systems from most of the larger companies,
and he worked with and designed systems for the major golf simulation companies. Id.
He consults with several companies on new equipment, software, and screen designs.
Id.

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In forming his opinions relevant to this case, Lefebvre reviewed several
depositions and exhibits, conducted a site visit, and reviewed answers to interrogatories.
Id. at 4. His expert report describes the “anatomy” of a golf simulator room and
includes a description of the typical characteristics of such simulators, such as the usual
distance between the screens and walls. Id. at 4–5. He describes his observations from
the site visit. Id. at 6–8. He offers his professional opinions about the ways in which
the simulator in this case was hazardous and not installed correctly. Id. at 8–10.

Lefebvre’s specialized knowledge derives from his experience, and in order to
testify as to the opinions he proffers it is not necessary for him to have a specific degree
or to base his conclusions on peer-reviewed scientific articles. His testimony will help a
trier-of-fact understand how golf simulator rooms are constructed to reduce the hazards
and how the specific materials, design, construction, and condition of the golf simulator
in this case may have contributed to the incident in question. Therefore, Lefebvre’s
testimony is generally relevant. The Court reserves consideration of the relevance of
specific testimony until trial.

Puretz criticizes Lefebvre’s non-scientific approach and lack of scientific
measuring instruments, but Lefebvre’s opinions could reliably flow from the facts
known to him from his experience with indoor golf simulators, golf equipment, the
depositions regarding what happened in this case, and his manner of inspecting the golf
simulator in question. See Est. of George v. Vermont League of Cities & Towns, 2010
VT 1, ¶ 15, 187 Vt. 229 (“Thus, in fulfilling its gatekeeper role, the trial court must
‘examine the expert’s conclusions in order to determine whether they could reliably flow
from the facts known to the expert and the methodology used.’ ”) (quoting Magistrini v.
One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584, 595 (D.N.J.2002)). Despite
using “no scientific instruments at all to measure the tension on the fabric,” Motion to
Exclude at 6, Lefebvre’s conclusions are generally reliable based on his professional
experience, and there is no showing that such instrumentation or precision
measurements would be necessary in order to render Lefebvre’s opinions. Lefebvre has
extensive experience evaluating golf simulation room designs, and there is no showing
that scientific measurements would be necessary to reach the conclusions that Lefebvre
proffers in his report.

Plaintiff’s theory of causation is based on circumstantial evidence, and Lefebvre’s
conclusions are applications of his experience and knowledge to the known facts, such
as the deviations from industry standards, the thickness of the screen, the condition of
the tee and clubs, to make conclusions about cause—it is not blind speculation. There
are certain questions of fact that are open, depending on the weight that the jury gives to
other witnesses’ testimony and other evidence. Lefebvre’s conclusions take into account
multiple factors that could have contributed to the incident that occurred, given the
accounts of the incident in the depositions. The conclusions are reliable and relevant,
and will assist the jury in deciding what happened and why it happened.

“Expert testimony ‘does not alone have to meet the proponent’s burden of proof’
to be admissible.” In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 9, 185 Vt. 201
(quoting USGen New England v. Town of Rockingham, 2004 VT 90, ¶ 19, 177 Vt. 193).

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“In order to tease out deficiencies of expert testimony, opponents should attack
testimony of this nature through the adversarial process.” In re Appeal of JAM Golf,
LLC, 2008 VT 110, ¶ 9 (quoting Daewoo, 2008 VT 14, ¶ 16, 183 Vt. 208). Puretz’s
objections regarding scientific background and measurement go to the weight of the
evidence, rather than its admissibility.

Order

Defendant Puretz’s Motion to Exclude is denied for the reasons discussed above, with
reservations as noted.

Electronically signed: 2/9/2026 1:15:24 PM pursuant to V.R.E.F. 9(d)

_________________________________________
John R. Treadwell
Superior Court Judge

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